State v. Bolsinger
Decision Date | 11 January 1946 |
Docket Number | No. 34043.,34043. |
Citation | 21 N.W.2d 480,221 Minn. 154 |
Parties | STATE v. BOLSINGER. |
Court | Minnesota Supreme Court |
Appeal from District Court, Steele County; Axel B. Anderson, Judge.
William E. Bolsinger was convicted of criminal negligence in the operation of a vehicle resulting in death, and he appeals.
Affirmed.
Gallagher & Madden, of Waseca, for appellant.
J. A. A. Burnquist, Atty. Gen., Ralph A. Stone, Asst. Atty. Gen., and Mary Walbran, Acting County Atty., and Sam Lord, Asst. County Atty., both of Owatonna, for respondent.
Defendant was convicted of criminal negligence in the operation of a vehicle resulting in death, under Minn.St.1941, § 169.11 Mason St.1940 Supp. § 2720-175, which so far as here pertinent reads: "Any person who by operating or driving a vehicle of any kind in a reckless or grossly negligent manner causes a human being to be killed, under circumstances not constituting murder in the first, second, or third degree, or manslaughter in the first or second degree, is guilty of criminal negligence in the operation of a vehicle resulting in death," and appeals.
The state's claim is that on the evening of March 19, 1944, by operating or driving his automobile on a public highway in a reckless and grossly negligent manner, defendant killed his wife, who at the time was walking thereon. The information alleges that defendant "in a reckless and grossly negligent manner" (italics supplied) drove his automobile into and against his wife and inflicted injuries from which she died. It is in the language of the statute, except that it uses the conjunctive "and" instead of the disjunctive "or." The state's evidence tends to show that defendant was intoxicated as a consequence of drinking beer and whiskey at numerous times throughout the day; that he was in an ugly mood, which he manifested by quarrels with his wife and threats toward her; that, knowing that she was walking on the highway, he drove his automobile to overtake her; and that, although she was in plain sight ahead of him on the highway, he drove at excessive speed under the circumstances, failed to observe her, and hit her with great force and violence with the automobile. The evidence will be set forth in detail in the discussion of defendant's contention that the evidence is not sufficient to sustain a conviction.
Defendant's claim is that the statute is unconstitutional for the reason that the language thereof to the effect that causing death of another by operation of a vehicle "in a reckless or grossly negligent manner" does not prescribe reasonably ascertainable standards of guilt; that the information in the language of the statute is insufficient for the reason that it is so indefinite that it does not inform defendant with reasonable certainty of the charge against him; that it was error to deny certain requested instructions relating to the meaning of the words "reckless" and "grossly negligent"; that it was error to instruct the jury it might convict if it found, as the statute provides, that defendant caused decedent's death by driving the vehicle either in a reckless or grossly negligent manner rather than, as the information alleged, that he drove it in both a reckless and grossly negligent manner; and that the evidence fails to sustain a conviction even if the state's theory of the law be adopted.
1. In order to apply § 169.11 (§ 2720-175), we must first determine what it means. Here, as in other cases involving the meaning of a statute, the problem is one of construction. The killing of a human being, in cases not constituting murder or manslaughter in any of their degrees, by operating a vehicle in a manner that is either "reckless" or "grossly negligent," is declared by the statute to be the separate crime of "criminal negligence in the operation of a vehicle resulting in death." Since no questions of murder or manslaughter are involved here, the only question is what is meant by the words "reckless" and "grossly negligent" as used in the statute.
The meaning of the word "reckless," so far as it relates to driving, is found in § 169.13 (§ 2720-177), which defines "reckless" driving as driving "in such a manner as to indicate either a wilful or wanton disregard for the safety of persons or property." That means conscious and intentional driving which the driver knows, or should know, creates an unreasonable risk of harm to others. Restatement, Torts, § 500. By this is not meant that the driver must be personally conscious of his wrongdoing; it is sufficient that he ought to realize the fact. As said in comment c:
Intentional conduct, but not intentional harm, is meant. In Commonwealth v. Welansky, 316 Mass. 383, 396, 398, 55 N.E.2d 902, 909, 910, where a conviction of "involuntary manslaughter through wanton or reckless conduct" by reckless disregard of the safety of the patrons of a night club in the event of fire was sustained, there is an elaborate consideration of the question. The court said: "What must be intended is the conduct, not the resulting harm." Restatement, Torts, § 500, comment f, says:
In short, in order to constitute the crime in question by reckless driving, the accused must have known, or should have known, that his manner of driving the vehicle created an unreasonable risk of harm, but he need not have intended to cause harm.
"Gross negligence" was defined in High v. Supreme Lodge, 214 Minn. 164, 170, 7 N.W.2d 675, 679, 144 A.L.R. 810, as meaning negligence in a very high degree, or great or excessive negligence. This definition and one of defendant's requested instructions defining the words "gross negligence," based on the authority of Morris v. Erskine, 124 Neb. 754, 248 N.W. 96, are practically verbatim. It has been said that "gross negligence" is Prosser, Torts, p. 260.
"Gross negligence" is a term commonly used where degrees of negligence are recognized. The Massachusetts court is the leading exponent of the doctrine. Because of that fact, its decisions carry great weight. Thornhill v. Thornhill, 172 Va. 553, 2 S.E.2d 318; Shaw v. Moore, 104 Vt. 529, 162 A. 373, 86 A.L.R. 1139. In the leading case of Altman v. Aronson, 231 Mass. 588, 591, 121 N.E. 505, 506, 4 A.L.R. 1185, where "gross negligence" is defined as very great negligence or absence of even slight care, but as not equivalent to wanton and wilful wrong, the court said: It is something between ordinary negligence and reckless conduct. Learned v. Hawthorne, 269 Mass. 554, 169 N.E. 557.
The difference between "recklessness" and "gross negligence" was pointed out in Prondecka v. Turners Falls P. & E. Co. 238 Mass. 239, 242, 130 N.E. 386, 387, where the court said: ...
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...and applications in denial of constitutional attacks for vagueness have been made in other jurisdictions, e.g., State v. Bolsinger, 221 Minn. 154, 21 N.W.2d 480 (1946); State v. Wendler, 83 Idaho 213, 360 P.2d 697 (1961); Smith v. State, 197 Miss. 802, 20 So.2d 701 (1945); State v. Wojahn, ......
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